Bangalore District Court
Santosh Devi Alias Santosh Devi Jain vs Arjun Singh on 23 February, 2024
1
O.S.No.5109/2022
KABC010213602022
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY : (CCH-18)
::Present::
Prakash S. Helavar, B.Com., LL.M.,
XIX Addl. City Civil & Sessions Judge,
Bengaluru City.
Dated this the 23rd day of February, 2024.
O.S. No.5109/2022
PLAINTIFFS :: 1. Smt. Santosh Devi @
Santosh Devi Jain, W/o. Sri.
Peer Chand Jain, Aged about
60 years,
2. Sri. Laxmilal Jain, S/o. Late.
Sri. Jethmalji Jain, Aged about
56 years,
Both are residing at 265/267,
10th Main, 11th Cross, Wilson
Garden, Bangalore 560 027
(By Sri. B.N. Jayadeva, Advocate)
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O.S.No.5109/2022
V/s.
DEFENDANT :: Sri Arjun Singh, S/o. Sri. Peer
Singh, Aged about 45 years,
Residing at No.3, Laxmi
Complex,Yaryanapalya Cross,
Ramamurthy Nagar, Bangalore
560 016
Also at:
KUMKUM Fashion, No.581,
NRI Layout, Double Road,
Kalkere Road, Horamavu Post,
Bangalore 560 043
(By Sri. T.S., Advocate)
Date of Institution of the Suit :: 04-08-2022
Nature of the Suit :: Ejectment
Date of commencement of
recording of evidence :: 15-06-2023
Date on which the Judgment
was pronounced. :: 23-02-2024
Year/s Month/s Day/s
Total Duration :: 01 06 18
(Prakash S. Helavar),
XIX Addl. City Civil & Sessions Judge,
Bengaluru City.
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O.S.No.5109/2022
JUDGEMENT
The present suit is filed by the plaintiffs for the relief of delivery of vacant possession, arrears of rent and also for mesne profit.
2. The defendant represented that he is the owner of below mentioned schedule property;
All that piece and parcel of immovable property being the entire building having Ground measuring about 648 Sq.ft. and First Floor measuring about 648 Sq.Ft. built on and including the site on which it is built bearing No.9 forming part of and situated on land in Sy.No.106 of Kowdenahalli Village, earlier Bangalore South Taluk, now Bangalore East Taluk, earlier bearing ITI Notified area Khatha No.118/1/106, CMC Khatha No.558, situated in an area now called 1 st Block Ramamurthy Nagar, Bangalore coming within the limits of Ward No.25, Horamavu of BBMP with holder khatha No.558 measuring East to West 34 feet + 38 feet)/2, North to South 30 feet 4 O.S.No.5109/2022 in all measuring 1080 Sq.ft., and bounded on East by - Private Property, West by - Road, North b - House Property No.8 and South by - House Property No.10.
3. The facts of the plaintiffs case is in nutshell as under:-
The defendant offered to sell the suit schedule property to the plaintiffs for a sum of Rs.1,12,00,000/- (Rupees One Crore Twelve Lakhs only). In the evidence of that, the defendant has executed an Agreement of Sale dated 03-04-2021 in favour of plaintiffs. The defendant received Rs.5,00,000/- as an advance amount out of the sale consideration amount from the plaintiffs and later, the defendant received Rs.35,00,000/-. Therefore, the defendant received Rs.40,00,000/-. The plaintiff later came to know that the defendant has created charge on the suit schedule property in favour of Fullerton India Credit Company 5 O.S.No.5109/2022 Limited as a security for the loan availed by M/s. Kumkum Fashion. So, the defendant again requested the plaintiffs for further payment to clear the loan. As such, the plaintiffs paid Rs.51,74,774/-. Though the defendant had assured that he would make available all the documents in respect of suit schedule property, but went on postponing for execution of Sale Deed for want of khatha. The defendant even forced the plaintiffs to pay the property tax and thus, the plaintiffs to avoid delay for completion of sale, paid the said property tax.
4. Further, it is pleaded that ultimately, the defendant agreed to execute the Sale Deed on 28-12-2021. So, the plaintiffs secured the Demand Drafts for balance sale consideration amount and arranged the payment for stamp duty and registration fees. The plaintiffs were waiting on 28-12-2021 in Sub- Registrar Office at Banaswadi, Bangalore along with 6 O.S.No.5109/2022 final printout of the Sale Deed. But the defendant did not turn so, the efforts of the plaintiffs remained unsuccessful. The defendant ultimately reached the Office in last hour and he said that he would come on 29-12-2021 to complete the execution of registered Sale Deed. The defendant placed a fresh demand for allowing him to occupy the schedule property as a tenant, as he needs time to deliver the vacant possession of the schedule property. So, the plaintiffs were compelled to agree for the said condition with an impression that the defendant would definitely honour his commitment. But the defendant had been harassing the plaintiffs by delaying the completion of the sale to the schedule property by executing the Sale Deed though the plaintiffs were ready and willing to perform their part of contract every time. But the defendant requested two months time to deliver the possession. 7
O.S.No.5109/2022
5. It is further alleged that the defendant was inducted to the suit schedule property as a tenant on a monthly rent of Rs.60,000/-. Since the plaintiff paid the substantial amount along with registration fee and stamp duty therefore Lease Deed dated 28-12-2021 was entered into and brought to the Sub-Registrar Office on 29-01-2021. Though the defendant agreed to come on 29-12-2021 at 10.30 a.m., to the Sub-Registrar Office to complete the Registration of Sale Deed, but he did not turn up. Later, the defendant came to the Sub-Registrar Office and picked up arguments and demanded that he should be permitted to look into the original Agreement of Sale dated 03-04-2021. So, when the plaintiffs showed the said document to the defendant, by that time, he attempted to tear the Agreement of Sale . But fortunately, the plaintiffs could able to save the said document.
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O.S.No.5109/2022
6. It is further alleged that the defendant having created a commotion, at the time managed to steal a blank signed cheque leaf signed by the 1 st plaintiff bearing No.2225872 from the account of 1 st plaintiff at Union Bank of India, BVK Iyengar Road Branch, Bangalore, which has been carried by the husband of the 1st plaintiff in a bag along with the other documents and Demand Drafts. At that point of time, the plaintiffs did not realise that the defendant had stolen the signed blank cheque. Therefore, the Sale Deed was registered, the defendant signed the Lease Deed of the schedule property, which was sold to the plaintiffs, affixed the date as 30-12-2021. At that point of time, the plaintiffs did not realise the malafide intention of the defendant. The plaintiff being apprehended the act of the defendant, wanted to have the said Lease Deed registered and for 9 O.S.No.5109/2022 that reason, the plaintiffs paid the requisite stamp duty and registration fees.
7. It is further alleged that while the plaintiffs were patiently waiting to take the possession of the suit schedule property having paid the entire sale consideration amount to the defendant, during the second week of January-2002, at that point of time, Mr. Peer Chand, the husband of 1 st plaintiff received message from Union Bank of India informing that the cheque for Rs.20,45,000/-, which was presented for realisation in the account of 1 st plaintiff has been returned for want of funds. By that point of time, the plaintiffs could not make out how could such a cheque could have been presented and that too for a sum of Rs.20,45,000/- and by whom. After enquiry and ultimately learnt from the said Bank, the plaintiffs requested the bank to furnish a scanned image of the 10 O.S.No.5109/2022 said cheque and the same was received by the plaintiffs on 10-01-2022 and when they received the scanned image of cheque, they realised the fraud played by the defendant.
8. Meanwhile, the plaintiffs received a notice dated 17-1-2022, which was issued by the defendant in respect of the funds insufficient. At that point of time, the husband of plaintiff No.1 Mr.Peerchand realised that now the defendant created commotion in the Sub- Registrar Office on the date of registration and during the commotion has stolen the blank cheque leaf and filed up the said cheque for Rs.20,45,000/-. The plaintiffs not at all due to the defendant much less an amount of Rs.20,45,000/-. So, the plaintiffs lodged police complaint before the Banaswadi Police regarding theft of the cheque. Later, they requested the defendant to deliver the possession of the schedule property and sent a 11 O.S.No.5109/2022 notice dated 15-02-2022 informing that the defendant had agreed to deliver the possession within a period of two months as per the Lease Deed dated 28-12-2021 and even informed that the tenancy of the suit premises has been terminated.
9. It is further alleged that the said termination notice dated 15-02-022 received by the defendant on 21-02-2022 and after which, the defendant sent an untenable reply on 28-02-2022. The defendant failed to quit and deliver the vacant possession to the plaintiffs therefore, the plaintiffs compelled to file the present suit for ejectment. The defendant denied to deliver the possession. But the plaintiffs are entitled to recover the damages with interest at the rate of 1.5% per month on Rs.1,12,00,000/-. So, the defendant has to pay in all Rs.5,60,000/- from 23-02-2022 till 28-06-2022. Besides, the defendant is liable to pay Rs.60,000/- per month 12 O.S.No.5109/2022 from 29-12-2021 till 28-02-2022 and even liable to pay arrears of rent of Rs.1,20,000/- with interest at the rate of 18% p.a. In view of the above said allegations, the plaintiffs requested for decreeing the suit.
10. The defendant entered his appearance through his counsel and denied the plaint averments by filing written statement.
It is admitted that he has offered to sell the suit schedule property to the plaintiff. But it is denied that he had entered into an Agreement of Sale dated 03-04-2021 for a sum of Rs.1,12,00,000/-. It is also denied that he received an advance sale consideration amount of Rs.40,00,000/-. It is also denied the plaint para No.4 to 10 as specifically false. It is admitted that the plaintiff No.1 issued cheque for a sum of Rs.20,45,000/- as an additional amount. The defendant has right to send a notice to demand the said amount as 13 O.S.No.5109/2022 per the provisions of Negotiable Instruments Act. It is contended that the plaintiffs have cooked up a story that the defendant stolen the cheque. It is admitted that the plaintiffs lodged police complaint before the Banaswadi Police Station. But the police personnel secured the presence of plaintiffs and defendant and it was advised to the plaintiffs not to make unnecessary allegations against the defendant and issued an endorsement. But the plaintiffs unnecessarily filed the false complaint against the defendant just to harass him.
11. It is specifically contended that the plaintiffs have filed false, frivolous suit for unlawful gain claiming to be the plaintiffs are owners of the suit schedule property by virtue of Sale Deed and the defendant is in permissive possession as a Lessee on monthly rent. The plaintiffs deliberately filed a suit for unlawful gain with an ulterior motive. Both plaintiffs being the husband 14 O.S.No.5109/2022 and wife approached the defendant with regard to sale transactions. But the defendant never agreed for the sale consideration as asserted by the plaintiffs. But after long discussions, the plaintiffs agreed for the quoted sale price of the defendant. The plaintiffs later agreed to pay the agreed sale consideration amount during the proceedings of Sale Deed before the Sub-Registrar. The defendant expected that plaintiffs will convey the same as per commitment. But it was surprised to the defendant that the plaintiffs failed to keep up their promise by making payment of additional amount as agreed.
12. On the other hand, the plaintiffs pressurised and compelled the defendant to accept the earlier agreed sale consideration amount. But the defendant resisted the compulsion of the plaintiffs. Since the plaintiffs failed to pay the amount as agreed therefore, 15 O.S.No.5109/2022 the defendant refused to appear before the Sub- Registrar and hence, the registration process was not completed. The plaintiffs being known to the defendant through his relatives and friends never expected the foul play of them. After long discussions, the plaintiffs issued a cheque in favour of the defendant for the difference amount without paying the earlier consideration amount. There was no passing of consideration amount to the defendant and in fact, the plaintiffs played the fraud.
13. It is further contended that, there was non completion of sale transactions and the claim of the plaintiffs that the defendant by executing Sale Deed sought for permissive possession to stay in the suit premises is unbelievable. The plaintiffs created the said Lease Deed. The plaintiffs are claiming unlawful gain by laying unlawful claim so, they are not entitled for the 16 O.S.No.5109/2022 reliefs. The cheque, which was delivered by the 1 st plaintiff for the difference amount was returned with an endorsement as insufficient funds. The conduct of both plaintiffs is only to play fraud upon the defendant. Therefore, there was no other option for the defendant except causing statutory notice for filing the petition under Section 138 of Negotiable Instruments Act. The Criminal Case filed in C.C.No.51736/2022 is pending for adjudication before the 33rd Additional C.M.M., Maohall Unit, Bangalore. In the said case, the summons has been issued to the 1 st plaintiff. But she failed to answer to the summons thus, NBW (Non Bailable Warrant) has been issued against her. The plaintiffs are aware of the said proceedings, but still only to harass the defendant they filed the present suit as a counter blast. In view of the above said contentions, the defendant sought for dismissal of suit with exemplary cost. 17
O.S.No.5109/2022
14. On the basis of pleadings of the parties, the following issues were framed.
1. Whether the plaintiffs prove that the defendant is in possession over the suit property under the Lease Agreement dated 29-12-2021 ?
2. Whether the plaintiffs prove that the defendant deliberately and intentionally withheld the possession of the suit schedule property ?
3. Whether the plaintiffs prove that the defendant is arrears of the rent as being alleged ?
4. Whether the plaintiffs are entitled for the reliefs of (a) Delivery of possession (c) Arrears of rent and (c) Mesne profit along with interest ?
5. What order or decree ?
15. In order to prove the plaint averments, the General Power of Attorney holder and husband of 1 st 18 O.S.No.5109/2022 plaintiff has deposed as PW-1 and relied upon documents marked at Ex.P-1 to P-13 and closed the evidence.
16. I have heard the arguments from the learned counsel for the plaintiffs and perused the records.
17. I propose to answer to the above said issues are as follows:
ISSUE No.1 :: In the Affirmative
ISSUE No.2 :: In the Affirmative
ISSUE No.3 :: In the Affirmative
ISSUE No.4 :: In the Affirmative
ISSUE No.5 :: As per final order for the
following;
REASONS
18. ISSUE NO.1 TO 3 :: These issues are taken up together for discussion to avoid repetition of facts.
The General Power of Attorney holder of 1 st 19 O.S.No.5109/2022 plaintiff has deposed as PW-1. Upon perusal of his oral evidence, it is crystal clear for having reiterated the plaint averments. Meaning thereby, it is evident that the defendant agreed to sell the suit schedule property to the plaintiffs and later, the defendant executed registered Sale Deed dated 28-12-2021 for total consideration amount of Rs.1,12,00,000/-. It is also evident from the oral evidence of PW-1 that the defendant remained in possession of the suit schedule property seeking two months time to quit, vacate and deliver the possession. Accordingly, the plaintiffs permitted the defendant. Subsequently, the defendant failed to deliver the possession therefore, the plaintiffs caused legal notice to the defendant by demanding rental amount, damages and possession. But the defendant failed to perform his part of assurance. Therefore, the plaintiffs constrained to file the suit. It is 20 O.S.No.5109/2022 also evident from the oral evidence of PW-1 that both entered into a Lease Deed dated 28-12-202. But though the defendant agreed to quit and deliver the possession soon after completion of two months, but he did not do so therefore, the plaintiffs filed the present suit.
19. In order to support the oral evidence, the PW-1 relied upon 13 documents marked at Ex.P-1 to P-13. The Ex.P-1 General Power of Attorney is clear that the 1st plaintiff appointed her husband to prosecute and proceed with the present suit and to do all the acts, which are necessary. In order to rebut this particular document and oral evidence, there is no cross- examination by the defendant. The Ex.P-2 registered Sale Deed is crystal clear that the defendant sold the schedule property to the plaintiffs for a total consideration amount of Rs.1,12,00,000/-. The said document is registered and it is having presumptive 21 O.S.No.5109/2022 value under law. But to rebut the said document, there is no cross-examination by the defendant and also no acceptable evidence is placed by the defendant.
20. The documents at Ex.P-3 to P-5 are crystal clear that the names of plaintiffs have been recorded in the BBMP in respect of the suit schedule property as a holder of the property by virtue of Sale Deed at Ex.P-2. The Ex.P-6 Encumbrance Certificate for the period from 01-04-2021 to 13-01-2022 clearly establishes the fact that the names of plaintiffs have been recorded to the present suit schedule property by virtue of registered Sale Deed executed by the present defendant. The Ex.P-7 property tax receipt establishes that the plaintiffs remitted the tax to the suit property for the year 2022-23. As against these documents, absolutely there is no case made out by the defendant. The Ex.P-8 Lease Deed dated 28-12-2021 is crystal clear that both plaintiffs and 22 O.S.No.5109/2022 defendant entered into a Lease Deed in respect of the suit schedule property. As per the said document, the defendant agreed to stay back in the suit schedule property for a period of two months commencing from 28-12-2021.
21. It is also crystal clear that the defendant agreed to pay rent of Rs.60,000/- per month to use and occupation of suit schedule property and the said defendant agreed to deliver the vacant physical possession to the plaintiffs after the period of two months i.e., on or before 28-02-2022. The Ex.P-9 Legal Notice issued by the counsel for the plaintiffs to the defendant dated 29-01-2022 is crystal clear that the plaintiffs informed tot the defendant to deliver the vacant possession of suit schedule premises to the plaintiffs forthwith. But in this connection, there is no answer by the defendant.
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O.S.No.5109/2022
22. Therefore, upon careful perusal of entire records, it is crystal clear that the defendant being the owner of schedule premises, sold the same in favour of plaintiffs as per Ex.P-2 registered Sale Deed for a valuable consideration amount of Rs.1,12,00,000/-. But on his request as per Lease Deed at Ex.P-8 the defendant retained the possession for a period of two months from the date of Sale Deed. But the said defendant never deliver the possession of suit schedule property to the plaintiffs therefore, the plaintiffs left no option filed the present suit for eviction, arrears of rent and damages. It is further evident from the records that, though the defendant entered his appearance and taken number of contentions by filing written statement, but failed to participate in the suit and about his non participation has been recorded in the proceedings and same has been reproduced hereunder;
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O.S.No.5109/2022
23. On 15-07-2023 when the evidence of PW-1 was recorded, by that time, though the defendant had appeared on 09-12-2022, but failed to file the written statement. Therefore, on 15-06-2023 cross-examination of PW-1 was taken as nil. Later, on 14-07-2023, the learned counsel for defendant No.1 filed an application for seeking permission to file the written statement and accordingly, on payment of cost application was allowed and permitted to file the written statement. Subsequently, on 04-08-2023, the case was posted for conciliation. But on 31-08-2023 the defendant remained absent on 12-09-2023 and the case was retained for cross-examination of PW-1 till 4-10 p.m. But the defendant and his counsel remained absent. On the said day, an order was passed directing the defendant to pay damages of Rs.60,000/- and further case was posted for cross-examination of PW-1.
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O.S.No.5109/2022
24. On 06-10-2023 PW-1 remained absent thus, the case was posted for cross-examination of PW-1 and for payment of damages. On 21-11-2023 PW-1 present, but defendant and his counsel absent. Thus, the cross- examination of PW-1 was taken as closed. On 06-12-2023 case was posted for arguments. The learned counsel for the plaintiffs addressed the arguments and heard the learned counsel for plaintiffs. However, an opportunity was provided to the defendant to address the argument. On 14-12-2023 the counsel for defendant filed two applications requesting to recall PW-1 for cross-examination and on 11-01-2024 though the defendant's counsel remained absent, but by considering the applications filed by the defendant he was permitted to cross-examine PW-1 on payment of cost. Later, on 06-02-2024 the defendant and his counsel again remained absent and therefore, this court 26 O.S.No.5109/2022 by looking to the absence of defendant and his counsel, again cross-examination of PW-1 is taken as nil and having heard the arguments for the learned counsel for the plaintiffs, the case was came to be posted for judgment.
25. So, the conduct of the defendant is crystal clear that having been sold the suit schedule property, still he retained the possession with him rather delivering to the plaintiffs. So, it appears that he is not a law abiding person therefore, an adverse inference has been drawn against him. It is evident that the entire oral and documentary evidence placed by the plaintiffs remained unchallenged and under these circumstances, it is opined that the plaintiffs clearly established their case as alleged and hence, I answer Issue No.1 to 3 in the affirmative.
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O.S.No.5109/2022
26. ISSUE NO.4 :: In view of the reasons stated above, it is held that the plaintiffs are entitled for the reliefs as sought for. Thus, the defendant is liable to deliver the vacant possession to the plaintiffs apart from payment of arrears and even mesne profit. Thus, in view of the above said reasons, I am inclined to answer Issue No.4 in the affirmative.
27. ISSUE NO.5 :: In view of my findings on Issue No.1 to 4, I proceed to pass the following;
ORDER The suit filed by the plaintiffs is decreed.
The defendant is directed to quit, vacate and deliver the vacant possession of the suit schedule property to the plaintiffs within two months from the date of this order.
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O.S.No.5109/2022 Further, the defendant is directed to pay arrears of rent of Rs.1,20,000/- from 28-12-2021 to 28-02-2022.
The defendant is also directed to pay mesne profit to the plaintiffs at the rate of Rs.1,40,000/- per month from 28-02-2022 till its payment with interest at the rate of 6% p.a. No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, transcription corrected and then pronounced by me in the open Court on this the 23rd day of February, 2024.) (Prakash S. Helavar), XIX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
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O.S.No.5109/2022 ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF :
(A) PLAINTIFF'S SIDE ::
PW.1 :: Mr. Peerchand (B) DEFENDANTS SIDE :: N I L II. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF :
(A) PLAINTIFF'S SIDE :
Ex.P-1 :: General Power of Attorney dated 12-06-2023 Ex.P-2 :: Original Sale Deed dated 28-12-2021 Ex.P-3 :: Khatha Certificate dated 11-02-2022 Ex.P-4 :: Certificate issued by BBMP Ex.P-5 :: Tax paid receipt Ex.P-6 :: Encumbrance Certificate Ex.P-7 :: Property tax paid receipt Ex.P-8 :: Original Lease Deed dt: 28-12-2021 Ex.P-9 :: Copy of Legal Notice dt. 29-01-2022 Ex.P-10 :: Copy of Notice dated 15-02-2022 Ex.P-11 :: Copy of reply notice dt: 28-02-2022 Ex.P-12 :: Police Complaint dated 18-01-2022 Ex.P-13 :: Postal Acknowledgement 30 O.S.No.5109/2022 (B) DEFENDANT'S SIDE : NIL (Prakash S.Helavar), XIX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
PRAKASH Digitally signed by PRAKASH SANGAPPA HELAVAR DN: cn=PRAKASH SANGAPPA SANGAPPA HELAVAR,ou=HIGH COURT OF KARNATAKA,o=HIGH COURT OF KARNATAKA,st=Karnataka,c=IN HELAVAR Date: 2024.02.23 16:09:45 IST